Solicitors Ethical Dilemmas when Using Social Media: SRA Code of Conduct

The ethical dilemmas faced by solicitors when using social media in relation to SRA Code of Conduct

Introduction

Law Society has defined social media “as websites and applications that enable users to create and share content or to participate in social networking”[1].With the passing of time, social media has become indispensable to the law environment. No matter how indispensible though, it is still quite new within the legal profession, and as such, represents ethical dilemmas for solicitors in relation to Solicitors Regulation Authority.       

“The interactions of solicitors on social media, both during office hours and outside them, present multiple ethical dilemmas for solicitors. It is often difficult for solicitors to appreciate this because social media is fairly new to the legal profession, and therefore many solicitors struggle to take it seriously when contemplating Code of Conduct breaches.”[2]

The above quote by Mena Ruparel and Richard Burnham will be discussed in this essay in comparison with SRA Code of Conduct by touching on the following subjects: social media in the legal profession, how ethics applies to social media and the SRA Code of Conduct.

Social media in the legal profession

When social media was born, it was used only as means of communication. Only after year 2011, the businesses found use for social media. Today’s impression is, that if a firm is not online, it is not trustworthy. Platforms of social media include: The firm’s website, LinkedIn, Facebook, YouTube and other. As advised by Mena, social media is used in two ways: as a “marketing tool for a firm” and as “a marketing tool for an individual solicitor.”[3]

Firstly, when social media is used as a marketing tool for a firm, the firm is promoted to the general public, such as outlining the firm’s objective, highlighting their services and fees, their contact address, and so on. Secondly, when used as a marketing tool for an individual solicitor, it is used for the promotion of individual services. Sometimes, without even realizing it the solicitors may end up, unknowingly, promoting the firm also just by working with that specific firm. Similarly, individual solicitors may use social media only for personal reasons without the profession in mind. Advisable is to keep the professional and personal accounts separate. In that way, they would get the opportunity to think twice whether it is worth posting.

This next paragraph will outline the key benefits and risks of the social media. The main benefit of social media is the little or no cost of advertising a law practice, contrary to traditional advertising routes. This goes very well with the smaller firms because even they can afford marketing costs. Another important benefit is that firms choose their own advertising information about themselves rather than relying on third parties or word of mouth. Thirdly, social media is available to everyone around the world without any geographical limitations. This is a great opportunity for niche firms to advertise their services globally. Lastly, clients expect a social media presence as would constitute a forward thinking attitude and not having one would raise a red flag.

Because the information on social media becomes available very quickly to the public, this could constitute a massive risk, if the statement were to be untrue or breaks the confidentiality of a client and either the firm or the individual could be made liable under Outcome(8.1)of SRA Code of Conduct, “your publicity in relation to your firm or in-house practice or for any other business is accurate and not misleading, and is not likely to diminish the trust the public places in you and in the provision of legal services”[4]. Another serious risk would be the breach of regulatory principles, such as, to act with integrity or behave in a way that maintains the trust the public places in you and in the provision of legal service. All of these would bring disciplinary proceeding from SRA.

From a firm’s perspective, the risk is lower compared to the individual solicitor’s risk. This is because there are more people involved in the decision of making something public on their website and it is more regulated. The individual solicitor’s thought process is his own and if rushed to publish an opinion, it presents riskier than such of a firm. The firms can only do so much as to save their solicitors from not using social media in the workplace but outside of the working hours the solicitors still represent a risk to the firm.

Ethics and Social Media

Solicitors still face ethical dilemmas when it comes to using social media during and outside of working hours. This is because social media is still new to the legal profession. As such, solicitors are not used to paying so much attention to what they are posting and are not taking social media very seriously because, in some of their opinions, there are really bad things happening in the world and posting an advice to a colleague about a client he had, seems so small. Also another thought of these reticent lawyers is that if they are off work it does not really count as they are off to be private citizens.

Lord Woolfe, in the case Hodgson v Imperial Tobacco Ltd [1998]in the Court of Appeal (Civil Division), said parties should be entitled to have their problems being dealt in court without “improper interference with the course of justice”[5]. In the appeal, one of the questions raised was weather the court should grant an order preventing the parties or their legal advisers to make any comment in the media without the leave of the court.

It was clarified that any judgement made in chambers is it normally considered a public document and it is not confidential unless stated otherwise.

The judge also stated:

” The professionalism and sense of duty to legal advisers who conduct litigation of this nature should mean that the courts are able to rely on the legal advisers to exercise great self-restraint when making comment to the press”[6]

The above comment highlights that because the comments on social media are instantaneous, and because they are addressed to the wider public, it is easy to result in regulatory and ethical breaches when solicitors communicate on social media. Social media is very risky and needs to be handled with care as it could lead to serious consequences such as striking off. SRA still considers a regulatory breach the fact that solicitors post, after hours, unethical comments and using their personal accounts.

Caselaw is also important regarding duties of the court and society. In case, Bolton v Law Society[7], where a solicitor misappropriated funds, Sir Thomas Bingham said” Any solicitor who is shown to have discharged his professional duties with anything less than complete integrity, probity and trustworthiness must expect severe sanctions to be imposed upon him by the Solicitors Disciplinary Tribunal”[8]. Lawyers owe a duty to officers of the court and a duty to society as to uphold the rule of law by ensuring the best legal advice and representation is accessible to every client.

High ethical standards are also contained the Legal Services Act 2007 S 1(3)” professional principles”[9] an example is “(a)the authorized persons should act with independence and integrity”[10]. All of these go hand in hand with social media.

SRA Code of Conduct and Social Media

The SRA is the regulatory body for users of legal services and it focuses on the protection of consumer interests and the general public of England and Wales. The SRA is split into: SRA principles, which define the ethical and professional standards that is expected of law firms – ten Principles which are mandatory ; and SRA Code of Conduct- which is divided into five sections, subsequently divided into fifteen chapters known as outcomes which are also mandatory that set out “what firms and individuals are expected to achieve in order to comply with the relevant Principles” [11] and Indicative Behaviors, to see guidance from SRA, that decide if an outcome has been achieved in compliance with the principles, non-mandatory.

The Principles that apply to social media are: Principle 2: Act with integrity; Principle 3 – You must not allow your independence to be compromised; Principle 4: Act in the best interest of each client; Principle 6- Behave in a way that maintains the trust of the public places in you and in the provision of legal services.[12]

Principle 2 and 3 are the easiest to be breached through social media. Also, to note “where two or more principles conflict, the one which best serves the public interest takes precedent”[13]

The Outcomes that apply to social media: Chapter 1- client care; Chapter 4-confidentiality and disclosure; Chapter 8-publicity; Chapter 11-relations with third parties.[14]

Chapter 1- client care, looks at the individual needs of the client. Example of outcomes: “O(1.1) you treat your clients fairly; O(1.2) you provide services to your clients in a manner which protects their interests in the matter, subject to the proper administration of justice”7

Chapter 4- Confidentiality and Disclosure, looks at protecting the confidential information of the client and the disclosure of material information to clients. A great example is the “O(4.1) you keep the affairs confidential unless disclosure is required or permitted by law or the client consents.”

Chapter 8- Publicity, looks at making sure the information that firms advertise are not misleading and sufficiently informative in order for clients to make an informed decision. Outcome O(8.1) is another great example “your publicity in relation to your firm or in-house practice or for any other business is accurate and not misleading, and is not likely to diminish the trust the public places in you and in the provision of legal services”

Chapter 11:Relations with third parties, looks at making sure not to take advantage of third parties and act in a manner which promotes the proper operation of  the legal system.

Indicative behaviors that can apply to social media: IB(1.1),IB(1.9) IB(1.2), IB(1.12), IB(1.18), IB(1.28),(10.2)and other.

Example of outcomes and principles breaches and how they apply to social media.

Paul receives an email from a fellow solicitor making a derogatory comment about his client’s ethnicity, a client that they all share. This is a classic breach of Code of Conduct, more specifically Principle 2: Act with integrity; Principle 6- Behave in a way that maintains the trust the public places in you and in the provision of legal services; Outcome (1.1) you treat your clients fairly; Outcome (4.1) You keep the affairs of clients confidential unless disclosure is required or permitted by law or the client consents; Indicative Behaviour (1.1)

Anna receives a LinkedIn invitation from one of her clients and she is a divorce lawyer. Apart from Principle 2 and Outcome (4.1) that is being breached, Principle 4: Act in the best interest of each client is added.

Posting information on the firm’s website that it is a multinational organisation and has a 99% success rate when instead it is quite small and no cases have been won by any solicitor, this constitutes a breach of Outcome(8.1) as it is misleading the public.

The hope for the future is that the SRA will publish some guidelines with regards to social media like BSB has done for their barristers (CD 3- honesty and integrity,CD-5 not to behave in a way which is likely to diminish the trust and confidence of the public, CD8- not to unlawfully discriminate) as this shall undoubtedly raise the awareness of how easy it is to breach the Code of Conduct.[15]

In conclusion, an ethical lawyer is a person that obeys and uses the law in order to help their clients. If in doubt of how to use social media, they should look at common law, statute and SRA Code of Conduct. There is a common belief that solicitors cannot really understand the risks of social media in or outside work and this dilemma will continue until further guidance can be given.

Bibliography

Table of cases:

• Bolton v Law Society [1994] 1 WLR 512
• Hodgson v Imperial Tobacco Limited[1998] 1 WLR 1056

Tables of Legislation:

• Legal Services Act 2007 <https://login.westlaw.co.uk/maf/wluk/app/document?src=doc&linktype=ref&context=21&crumb-action=replace&docguid=IAD41BDB192CD11DCA313C75C86B9113B> accessed 01 December 2018

Secondary Sources:

• Ruparel M and Burnham R, ‘How to be an Ethical Solicitor’, Ch 7: Ethics and Social Media’ (Bath Publishing 2017,136)
• SRA Handbook , SRA Code of Conduct 2011,Outcome(8.1). <http://www.sra.org.uk/solicitors/handbook/code/content.page > accessed 1 December 2018
• The Bar Standards Board, February 2017 < https://www.barstandardsboard.org.uk/media/1821624/bsb_social_media_guidance_pdf.pdf> accessed 1 December 2018
• The Law Society ‘What is social media’ (27 June 2018) <https://www.lawsociety.org.uk/support-services/advice/practice-notes/social-media/> accessed 1 December 2018

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[1] The Law Society ‘What is social media’ (27 June 2018) <https://www.lawsociety.org.uk/support-services/advice/practice-notes/social-media/> accessed 1 December 2018.

[2] M Ruparel and R Burnham, ‘How to be an Ethical Solicitor’, Ch 7: Ethics and Social Media’ (Bath Publishing 2017,136).

[3] Ibid.

[4] SRA Handbook -SRA Code of Conduct 2011,Outcome(8.1)<http://www.sra.org.uk/solicitors/handbook/code/content.page > accessed 1 December 2018.

[5] Hodgson v Imperial Tobacco Limited[1998] 1 WLR 1056.

[6] Ibid.

[7] Bolton v Law Society [1994] 1 WLR 512.

[8] Ibid.

[9]Legal Services Act 2007 <https://login.westlaw.co.uk/maf/wluk/app/document?src=doc&linktype=ref&context=21&crumb-action=replace&docguid=IAD41BDB192CD11DCA313C75C86B9113B> accessed 01 December 2018.

[10] Ibid.

[11] Ibid SRA.

[12] Ibid.

[13] Ibid 2.2 SRA Principles-notes.

[14] Ibid SRA.

[15]The Bar Standards Board, February 2017 < https://www.barstandardsboard.org.uk/media/1821624/bsb_social_media_guidance_pdf.pdf> accessed 1 December 2018.